Adjudicating Affirmative Action Within a Normative Framework of Substantive Equality and The Employment Equity Act – An Opportunity Missed?

THE

SOUTH AFRICAN

LAW JOURNAL

NOTES

ADJUDICATING AFFIRMATIVE ACTION WITHIN A NORMATIVE FRAMEWORK OF SUBSTANTIVE EQUALITY AND THE EMPLOYMENT EQUITY ACT — AN OPPORTUNITY MISSED? SOUTH AFRICAN POLICE SERVICE v SOLIDARITY OBO BARNARD C H ALBERTYN Professor of Law, University of the Witwatersrand INTRODUCTION

The constitutional and legal parameters of positive measures to achieve equality, especially through the medium of employment equity plans, have been hotly contested in law and politics. The recent Constitutional Court judgment of South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC) (‘Barnard’) might have established legal precedent, but it will do little to quell this debate. On the contrary, its four judgments are likely to enhance discussion about the implementation of employment equity or affirmative action in the workplace and the correct interpretation and justification of positive measures, and of substantive equality and dignity, in our democracy.

A decade ago, the case of Minister of Finance v Van Heerden 2004 (6) SA 121 (CC) (‘Van Heerden’) confirmed the place of positive measures in our equality jurisprudence as an integral part of, rather than an exception to, substantive equality. In constitutional terms, positive measures should not be subject to the test of presumptive fairness for discrimination under s 9(3), but should be evaluated against the three criteria established in s 9(2). In this way, they are subject to an evaluation of purpose and effects, guided by the values underpinning the right, but with a thumb on the scale of overcoming disadvantage, rather than the impact on individual dignity. Interestingly, this conceptual framework was never fully applied to affirmative action measures under the Employment Equity Act 55 of 1998 (‘the Act’), which tended to be tested solely as unfair discrimination under s 6(1) of the Act. One of the most disappointing outcomes of Barnard, as I argue below, is the failure of the Constitutional Court to develop a common understanding for evaluating employment-related affirmative action under the Act, within the overall normative framework of substantive equality established in s 9 of the Constitution.

Of course, the development of a constitutionally informed legal standard to test employment equity plans and affirmative action measures will always be troubled in a country that has seen racial classification serve as the basis for oppression and subordination, and now seeks to use it to achieve a ‘non-racial’ democracy. Contestation over how to secure redress, restitution and substantive equality is inevitable. The Barnard judgment demonstrates a common commitment to restitution and transformation, and, indeed, a common outcome. However, between that commitment and the outcome lie important differences in philosophical and legal approaches to equality, to s 9 of the Constitution and s 6 of the Act (and the relationship between them), to the methods and standards of justification for positive measures, and to the need for courts to engage substantively with crucial issues in our democracy. In this note, after setting out the case history and judgments in some detail, I explore the contrasting ideas of equality that underpin the different approaches to positive measures and discuss which is best suited to our constitutional project. I argue for a multifaceted approach to equality in s 9, which recognises the multiplicity of values that underlie the right, and suggest that this normative framework allows courts to balance the reasons/ purpose for an equity decision and its impact/effects, in the light of the competing and complementary values and principles that underlie equality. I suggest that this approach provides an effective conceptual framework for adjudicating employment equity decisions under the Act.

The implementation of affirmative action measures, including equity plans, generally involves employment decisions and can be challenged in court as claims of unfair discrimination under s 6(1) of the Act. However, such claims should be defended and adjudicated in terms of s 6(2)(a) of the Act. In doing so, the conceptual and value framework established by the place of s 9(2) in the right as a whole, as well as the relevant provisions of the Act, should guide the process of justifying the equity decision, and balancing its purpose and reasons against its effects. Although all the judgments in Barnard seek to evaluate purpose and effects in the context of the constitu-tional values of dignity and equality, I suggest that no single judgment gets it exactly right, namely to interpret and apply the Act with due regard to the complex, normative framework of substantive equality in the Constitution, and especially in s 9.

CONTEXT AND FACTS

The legal saga of Barnard has always been about more than bare facts and conflicting legal decisions. At its heart are anxieties about the place of racial quotas, targets and representivity in the implementation of affirmative action. The applicant, Solidarity, is a registered trade union, publicly committed to ‘interven[ing] on behalf of people who are being unfairly disadvantaged by affirmative action’:

‘Solidarity believes that imbalances must be rectified without creating new forms of imbalance. The manner in which affirmative action is currently being

implemented is creating serious new forms of discrimination. Because of the ideology of representation the masses do not benefit and whites are being seriously disadvantaged.’ (Available at

https://solidariteit.co.za/en/wat-maak-solidariteit-uniek/, accessed on 22 October 2014)

Conceptually and politically, Solidarity is suspicious of positive measures and views affirmative action as a form of unfair discrimination that should always be rigorously justified. Its members — whites and members of minority groups who are unable to attain jobs or promotion because of equity targets — are perceived to be ‘victims’ of affirmative action.

Ms Barnard was assisted by Solidarity in her claim of unfair race discrimination against the South African Police Service (‘the SAPS’) after she was twice overlooked for promotion in circumstances where she was the top-ranking applicant and where, despite the presence of an apparently suitable black candidate, the position was not subsequently filled (a factor that, according to her, affected service delivery).

In brief: Ms Barnard applied for the promotion position of superintendent in the National Evaluation Services Unit of the SAPS in September 2005, and, although a white woman, was recommended as the top applicant by a racially diverse panel who had concluded that the second in line, a black male, could not be appointed ‘without compromising service delivery’ (para 8). Given the under-representation of black women and men at that level, the Divisional Commissioner declined to appoint for reasons of employment equity (para 9). A similar post was advertised in May 2006 and Ms Barnard again applied. Again, she was recommended and the panel noted that she ‘would not enhance representivity at salary level 9 but would not aggravate the racial representivity of the division either as she was already part of the division’ (para 12). It was noted further that her promotion would enhance representivity at level 8, where there was an over-representation of white women (ibid). This time, the Divisional Commissioner agreed to appoint her, believing that her appointment would ‘enhance service delivery’ and a failure to appoint her in the second round would ‘foster the wrong impression’ (para 13). Nonetheless, the National Commissioner, who made the final decision, did not confirm her appointment as the recommendation did not ‘address the requirement of representivity and . . . the post was not critical to service delivery’ (para 14). When the post was advertised for the third time, as directed by the National Commissioner, Ms Barnard did not apply.

Ms Barnard filed a complaint in accordance with the SAPS’s grievance procedure, and was given reasons that reiterated the issues of representivity and service delivery, and spoke of restructuring the position in an attempt to address representivity (paras 15–16). Dissatisfied with these, she proceeded to the Commission for Conciliation, Mediation and Arbitration and then to the Labour Court, the Labour Appeal Court, the Supreme Court of Appeal and the Constitutional Court. In this trail of judgments, the lack of clarity and consensus in the interpretation and evaluation of positive measures and

affirmative action in the Constitution and the Act became ever more apparent.

THE CONTRASTING JUDGMENTS OF THE LABOUR COURT, LABOUR APPEAL COURT AND SUPREME COURT OF APPEAL: FAIRNESS UNDER s 6(1) OF THE ACT OR RATIONALITY UNDER s 9(2) OF THE CONSTITUTION?

The nub of Ms Barnard’s complaint was that she had been unfairly discriminated against on the basis of race under s 6(1) of the Act. This discrimination lay not in the content of the SAPS’s employment equity plan, but in its implementation, and especially in the decision of the National Commissioner not to appoint her because she was white. The Labour Court disposed of the matter entirely on this basis, finding against the SAPS on the ground that it had not discharged the onus of showing, on the balance of probabilities, that the discrimination was not unfair (Solidarity obo Barnard v South African Police Services (2010) 31 ILJ 742 (LC)).

On appeal to the Labour Appeal Court, the focus shifted to the status of the SAPS Employment Equity Plan as a restitutionary measure envisaged by s 9(2) of the Constitution, and enabled by the Employment Equity Act. In other words, the balance shifted from a concern with the individual impact of employment equity (as unfair discrimination) to whether the Plan and its implementation were constitutionally and legally defensible (South African Police Services v Solidarity obo Barnard 2013 (3) BCLR 320 (LAC) paras 17, 20). The Labour Appeal Court noted that affirmative action measures do not constitute unfair discrimination under s 6(2)(a) of the Act, but should be evaluated as ‘a constitutionally mandated tool in a designated employer’s hands to ensure compliance with the injunction to ensure and achieve equitable employment practices and representivity’ (para 34). Here the test is whether there is

‘a rational connection between the transformational goal of promoting the achievement of equality by ensuring equitable representation of designated groups in all occupational categories and levels in the appellant’s workforce on the one hand and the means to achieve that goal on the other’ (para 44).

The Labour Appeal Court found that the Commissioner was rationally pursuing the goal of representivity in declining to appoint Ms Barnard and, although representivity could be superseded by service delivery concerns, there was insufficient evidence for the court to ‘second-guess’ the National Commissioner on this issue (para 46).

The conflicting judgments of the two courts — an emphasis on the impact on individual rights and fairness in s 6 of the Act or the constitutionality of implementing the plan determined by rationality under s 9 of the Constitu-tion — set the stage for the appeal to the Supreme Court of Appeal (Solidarity obo Barnard v South African Police Services 2014 (2) SA 1 (SCA)). The Supreme Court of Appeal defined its normative approach at the outset, noting that ‘[i]n redressing the skewed situation created by our racist past, and to

recalibrate and achieve a balanced society, there has to be an accommodation and a scrupulous adherence to fairness’ (para 1). It located the case within an overall understanding of substantive equality, restitution, reparation and the creation of a ‘non-racial, non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights’ (para 10, quoting from Van Heerden). Honing in on the Act, the court accepted the importance of employment equity plans to ‘overcome historical obstacles and disadvantages and provid[e] equal opportunities for all’, but cautioned against ‘the mechanical application of formulae and numerical targets’ (para 23). It judged the matter squarely within the determination of unfair discrimination under s 6 of the Act and the onus established in s 11 (para 50) and proceeded to engage in a careful, contextual analysis of the matter, subjecting the facts of the case to ‘close . . . and scrupulous scrutiny’ (para 58), ultimately concluding that the decision of the National Commissioner not to appoint Ms Barnard was unfair discrimination. Importantly, it found that the SAPS had not discharged the onus of showing that the discrimination was fair. Central to this judgment was the Supreme Court of Appeal’s contention that the level of scrutiny of positive measures must be vigorous and fair, especially as race classifications were central to ‘the grand apartheid design’ and should be used, of necessity, but with care, in building a fully inclusive society (para 80).

THE CONSTITUTIONAL COURT

The court delivered a 114-page judgment, comprising a seven judge main judgment penned by Moseneke ACJ, a three judge minority (concurring in the outcome) of Cameron, Froneman and Majiedt JJ (‘Cameron et al JJ’), and two single judgments (also agreeing with the outcome) written by Van der Westhuizen J and Jafta J (in which Moseneke ACJ concurred). On the face of it, there is much agreement; they are, after all, ‘concurring’ judgments. All judges accepted that s 9(2) is a pivotal mechanism for overcoming the legacy of our past, and that positive, restitutionary measures are essential to equality and reconciliation. All endorsed a ‘substantive’ understanding of equality. Moreover, all agreed that Ms Barnard’s claim should not succeed, and that the decision not to appoint her was justified. However, they differed quite fundamentally in the conceptualisation of the claim, their understandings of equality and its underlying principles, the level of scrutiny to be applied to positive measures and the basis for such scrutiny, and hence the nature and degree of justification required for such measures. These vary between rationality and reasonableness (main judgment and Jafta J), fairness under the Act (Cameron et al JJ), and balancing purpose and impact under s 9(2) and within the Constitution as a whole (Van der Westhuizen J). Given the diversity and richness of these judgments, and the conversation that takes place between them, it is worth setting each out in some detail.

THE MOSENEKE MAIN JUDGMENT

Moseneke ACJ placed the matter squarely within the ‘transformative mission’ of the Constitution and the need ‘to take active steps to achieve

substantive equality’ (para 29). In seeking the goal of a ‘more equal and fair society that . . . is non-racial, non-sexist and socially inclusive’, he said that care should be taken that ‘the steps taken to promote substantive equality do not unwittingly infringe the dignity of other individuals’ (paras 30–2). Following the judgment in Van Heerden, Moseneke ACJ stated that the test for evaluating the constitutionality and lawfulness of positive measures, including affirmative action, is not ‘unfair discrimination’, but whether the measure is defensible under s 9(2) of the Constitution and s 6(2) of the Act. Of the Supreme Court of Appeal judgment, he noted:

‘[T]he Court misconceived the issue before it as well as the controlling law. It was obliged to approach the equality claim through the prism of s 9(2) of the Constitution and s 6(2) of the Act.’ (para 51)

Affirmative action measures should not be presumed to be suspect and unfair (and thus subject to a Harksen analysis), but should be subject to the three criteria derived from s 9(2), namely that they must: (i) ‘target a particular class of people who have been susceptible to unfair discrimination’; (ii) ‘be designed to promote or advance those classes of persons’; and (iii) ‘promote the achievement of equality’ (paras 36–7).

Disappointingly, the judgment took three steps backward at this stage. First, instead of developing this conceptual approach in relation to imple-menting affirmative action under the Act, Moseneke ACJ limited the ambit of Van Heerden by setting a minimum rationality standard for evaluating restitutionary measures: they ‘must be rationally related to the terms and objects of the measure’ (para 39). Secondly, Moseneke ACJ failed to apply s 9(2) to the facts at hand. Instead, he reinterpreted the claim as one ‘directed, not at unfair discrimination based on race under section 6(1) of the Act, but at reviewing and setting aside the National Commissioner’s decision not to appoint her’ (para 59). This oddly formalistic side-step avoided a substantive engagement with the problems of evaluating affirmative action within an overall understanding of employment law and substantive equality. Thirdly, he found that the matter (as a claim for administrative review) was not properly before the court, and concluded that ‘this belated attempt to . . . review . . . the National Commissioner’s decision must fail’ (para 60).

The judgment concluded with reasons as to why, even if the court were ‘benevolently to entertain the review, it is without merit’ (ibid). First, the appointment fell squarely within the discretion of the National Commis-sioner, and he was lawfully entitled to decline to appoint Ms Barnard for reasons of representivity (para 62). Secondly, there was no basis to believe that service delivery would be affected by Ms Barnard’s non-appointment (paras 63–4). Thirdly, in preferring representivity over Ms Barnard’s compe-tence, the decision was not unreasonable. It is in this last nod to reasonable-ness that the court balances the quest for representivity against the impact on Ms Barnard, finding that it did not constitute an ultimate bar on her advancement and that Ms Barnard knew about, and accepted, the targets under the Employment Equity Plan (paras 65–8).

THE CAMERON MINORITY, CONCURRING JUDGMENT Justices Cameron, Froneman and Majiedt concurred in the main judgment’s articulation of the constitutional values that underlie restitutionary measures and in its outcome, but write separately to (i) emphasise the racial tensions that ‘accompany the formulation and implementation of restitutionary measures’; and (ii) identify the appropriate standard for deciding when a restitutionary measure is ‘constitutionally compliant’ (paras 74–5). In contrast to the main judgment’s characterisation of the claim as an administrative review of the National Commissioner’s decision, the judges defined the ‘core issue’ of the litigation to be a claim of unfair discrimination which required them to ‘mediate the tension between th[e] prohibition [of unfair discrimi-nation] and the Act’s recognition that affirmative action measures are justified, and to formulate a robust, constitutionally compliant standard by which to adjudicate Ms Barnard’s claim’ (para 82).

Expanding on the ‘transformative tensions’ that accompany restitutionary measures, the judges identified a concern (also present in the Supreme Court of Appeal) with the use of race as a category to redress the past, whilst building an inclusive society that is not defined by race, and the tensions that this might create between ‘the equality entitlement of an individual and the equality of society as a whole’ (para 77). In resolving these tensions, the judges warn against using race as ‘the only decisive factor in employment decisions’ (para 80), and seek a more flexible and multifaceted standard that would enable them to balance competing constitutional values. In doing so, they rejected the main judgment’s adoption of a rationality standard: ‘The important constitutional values that can be in tension when a decision-maker implements remedial measures require a court to examine this implementa-tion with a more exacting standard of scrutiny’ (para 95). A raimplementa-tionality standard, they argued, is too deferential in that it would generally prevent a court from determining when ‘a decision-maker had impermissibly con-verted a set of numerical targets into quotas’ (para 96). ‘Any decision that accords with numerical targets would bear at least some rational connection with the measure’s legitimate representivity goals’ and thus pass constitu-tional muster (ibid). For them, this would be an undue elevation of race (representivity) over other concerns. These concerns include the impact on the dignity of the person(s) adversely affected, as well as the need to balance the position and interests of multiple designated groups (ibid).

Unlike the main judgment’s focus on s 9(2) of the Constitution and Van Heerden for guidance, Cameron et al JJ seek to ‘formulate a standard specific to the Act’ that is rigorous enough to balance the purposes of the Act with the interests of all affected (paras 84–5, 97). This, they decide, is fairness — a flexible and open-ended norm (familiar in labour law) that can be developed as precedent is established. For them, fairness applies in two ways to affirmative action measures: first, the measures must meet the standard of fair discrimination; and secondly, the implementation of the measures must meet the standards of fairness developed for that purpose (para 101). Again, this

contrasts with the main judgment’s averment that affirmative action mea-sures should be evaluated outside of the standard of unfair discrimination (and presumptive fairness). By adopting this more rigorous standard, Cam-eron et al JJ open to scrutiny the reasons given by the National Commis-sioner for his decision (para 102).

As the individual implementation of an employment equity plan is an employment decision, the judges worked with the text of the Act and labour law (rather than the Constitution) to identify criteria for determining whether employment equity plans have been fairly implemented. These criteria included the purpose of redressing disadvantage and achieving equitable representation (s 2), as well as s 15, which speaks about the kinds of measures that can be implemented as part of employment equity. For example, these measures must be flexible targets, rather than rigid quotas; should further diversity and equal dignity and respect; should not constitute an absolute barrier to employment; and should take account of merit (paras 87–90).

In evaluating the National Commissioner’s reasons, the judges focused on two critical issues raised in the appointment process: Was an appointment necessary for service delivery? Would the promotion of Ms Barnard have addressed representivity? Overall, the question was whether the Commis-sioner had adequately explained how he had balanced service delivery and representivity (in respect of both race and gender), and had applied the Plan in a flexible and fair manner (to avoid the de facto conversion of numerical target into rigid quotas). In weighing these issues, the judges found that the Commissioner’s failure to give reasons for choosing representivity over service delivery, and even to consider the issue of gender representivity, were both indications that he had not implemented the Plan in a fair manner (paras 113, 120). Indeed, the Commissioner’s reasons, on their own, provided limited evidence of the fair implementation of the Plan (para 121). In contrast to the approach of the Labour Court and Supreme Court of Appeal, Cameron et al JJ do not seem to adopt a presumptive idea of fairness that shifts the onus to the employer/state to dispose of the matter. Thus they consider ‘the absence of proper challenge and argument’ in Ms Barnard’s case on issues of service delivery, gender representivity, the Plan, and its targets, as a critical factor in tipping the scales in favour of the decision-maker’s stated reasons (para 122). To this ‘close call’ in deciding that there was fair implementation, they note that the over-representation of white women at salary scale 9 justified a preference for racial representivity, and Ms Barnard’s eventual promotion suggested that the non-appointment did not constitute an absolute barrier to her advancement in the SAPS. These factors mitigated in favour of the interpretation of numerical targets as ‘permissible goals and not as impermissible quotas’ (para 123).

THE VAN DER WESTHUIZEN JUDGMENT

Justice van der Westhuizen’s insightful judgment engages the main judgment and the Cameron judgment. He differed from them in constructing the

matter, not as an as administrative review or application of the Act, but as an evaluation of a s 9(2) measure in accordance with the standard set in Van Heerden. Van der Westhuizen J was particularly concerned that in developing and implementing ‘measures to restructure . . . society, heal [our] country and promote dignity and equality’ (para 128), there is a sense of ‘an integrated project to achieve equality, within the context of the . . . Constitution [as a whole], our history and the [non-racial, non-sexist and socially inclusive] future of which we dream’ (para 130). In particular, he sought to develop a balance between the individual impact of positive measures, the need to achieve substantive equality, and the dignity of both Ms Barnard and ‘those humiliated by apartheid’ (para 131). His approach, therefore, was to identify two constitutional bases for evaluating the implementation of positive measures: (i) the s 9(2) test and, especially, its third leg of ‘advancing equality’ (para 146); and (ii) an assessment of ‘whether the impact of the implementa-tion of a secimplementa-tion 9(2) measure on other rights is more severe than is necessary to achieve its purpose’ (para 164).

Turning to s 9, Van der Westhuizen J confirmed that positive measures are integral to a coherent understanding of substantive equality (paras 135–9). In determining the extent to which the implementation of positive measures may be scrutinised by courts, he drew from the Van Heerden test. Once a measure has been evaluated for constitutionality in terms of all three criteria and ‘is found to fall within section 9(2) and . . . not unfair discrimination under section 9(3), the effect and impact of its implementation must be evaluated’ (para 145). In doing so, more than ‘mere abstract rational testing is required’, especially as the third Van Heerden criterion, the need to ‘promote equality’, suggests that the impact of the measure must be evaluated (para 146, my emphasis). Van der Westhuizen J drew out several factors from this. First, the implementation of the measure should not involve ‘abuse of power or impos[ition of] . . . a substantial and undue harm on those excluded from its benefits’ (para 147, quoting Van Heerden). More broadly, however, the enquiry should ‘take into account whether the measure undermines the goal of s 9 to promote the long-term vision of a society based on non-racialism and non-sexism and must be alive to shifting circumstances and the distribution of privilege and under-privilege in society’ (para 148). In seeking equality, more than demographic representivity is required, especially when this results in small numerical targets that exclude persons from consideration and thus ‘may unjustly ignore the hardships or disadvantages suffered by the candidate or category of person, not to mention . . . [their] qualifications, experience and ability’ (para 149). In addition, one should not aggravate inequality — in this case by worsening the over-representation of a group (para 150).

In applying the criterion of ‘achieving equality’ to the decision not to appoint Ms Barnard, or anyone at all, Van der Westhuizen J considered several factors. First, the decision avoided aggravating over-representation and inequality on the basis of race (a corollary of promoting equality). Secondly, the Employment Equity Plan paid attention to the intersectional

position of white women as a group, but sought to avoid an existing over-representation of white women at the particular salary level. Thirdly, the failure to appoint anyone was not relevant to the decision not to appoint Ms Barnard and could not be used to render it unlawful (paras 150–6).

However, he found that the enquiry did not end there, as attention had to be paid to other constitutional rights and values. Here Van der Westhuizen J sought to identify a constitutional basis for balancing a potentially prejudicial impact of the decision on the affected individual, against the equality justifications of the decision-maker (sourced in s 9(2)). This is possible under ‘fairness’ in the s 9(3) (unfair discrimination) enquiry, but Van der Westhui-zen J correctly noted that to apply ‘fairness’ to s 9(2) risked ‘internal inconsistency’ (para 158). He reminded us of the precedent set in Van Heerden, that s 9(2) provides a complete defence against unfair discrimina-tion, and that courts would rightly be reluctant to second-guess policies that clear Van Heerden standards and are thus not unfair (para 160). Van der Westhuizen J thus posed a further enquiry, namely, ‘whether the impact of the implementation of a section 9(2) measure on other rights is more severe than is necessary to achieve its purpose’ (para 164). This drew from the proportionality analysis of s 36, and required the court to ‘engage in a balancing exercise and arrive at global judgment on proportionality and not adhere mechanically to a sequential checklist’ (ibid). It involved a ‘case-sensitive and concrete assessment of competing rights’ in which a ‘right or value is not compromised more than is necessary, in the context of a constitutional state founded on dignity, equality and freedom in which government has positive duties to uphold such values’ (para 166). In the present case, Van der Westhuizen J identified as significant not only rights to human dignity, but also the constitutional values around service delivery and accountability.

The potential of affirmative action to impair dignity is present in the emphasis of one’s race, gender or disability over other attributes; an emphasis that could amount to ‘a substantial and undue harm’ (para 168). How then do we measure dignity harms in relation to affirmative action? Van der Westhuizen J distinguished a narrow and subjective notion of dignity as an infringement of dignitas or self-esteem from the idea of being treated, more generally, with equal concern and respect (paras 170–2). Here the focus is not on an atomised individual, but on the ‘collective impulses’ of dignity and ubuntu, our ‘interdependence as members of a community’ (para 174). Affirmative action measures should be evaluated not only in terms of their impact on a single individual, but on how they enhance the dignity of society as a whole (paras 175–6). In this instance, we need to consider the importance of positive measures and affirmative action to restoring the dignity of those affected by apartheid (paras 177–8). This means weighing individual against collective dignity and the goal of substantive equality. In considering whether the impact on Ms Barnard’s dignity was reasonable and justifiable in the light of the goal of substantive equality (in this case equitable representation in the SAPS), Van der Westhuizen J asked whether she was

treated as a means to an end and her place in society denigrated (para 180). Related to this was whether the non-appointment ‘amount[ed] to an absolute barrier to her advancement’. He found neither to be the case as a result of the over-representation of her group and the flexibility in the Plan which allowed her to be promoted to another position (para 182).

Finally, the judge weighed ideas of personal integrity and an efficient public service against the promotion of equality (as representivity). In the end, understanding the effects of a policy, appointment or vacancy on service delivery is a complex balance that requires evidence and specialist institu-tional knowledge. Van der Westhuizen J found that there was insufficient evidence to make a call in this case, and deferred to the Commissioner’s decision (paras 187–9).

THE JAFTA CONCURRING JUDGMENT

Justice Jafta agreed with, and extended, the main judgment and, in particular, the finding that the cause of action had developed into a review of the National Commissioner’s decision that was not on the papers and should not have been considered.

To the extent that he made comments, obiter, on the appropriate standard to be applied to implementing positive measures, Jafta J also opposed the fairness threshold identified by Cameron et al JJ. However, he did agree with their instinct to find a standard within the Act. He suggested that the evaluation of affirmative action measures, and their implementation, must take place in terms of s 6(2) of the Act, namely, that they must be consistent with the purpose of the Act. Here he confined his reading of purpose to s 2 of the Act and rejectd Cameron et al JJ’s use of other sections of the Act. Accordingly, he limited the enquiry to whether the purpose of equitable representation was met, to the exclusion of considerations of impact and other effects (paras 224–7). For him, an approach that requires courts to take account of ‘competing interests’ and ‘weigh the interests of the claimant against those of the class the restitutionary measure was adopted to advance, as well as the interests of an employer who is obliged by the Act to achieve equity’ would undermine the very objectives of s 9(2) of the Constitution and the Act (paras 228–9). At its foundation, this argument — together with that of the Labour Appeal Court which Jafta J cited with approval — prioritises redress and restitution in the achievement of equality. The only standard that the decision-maker must meet is that he or she must rationally aim to achieve ‘representivity and equity’ (para 227).

ANALYSIS

The judgments raise many issues. At the centre of these is the absence of a common, coherent and holistic interpretation of positive measures and affirmative action within a broad understanding of (substantive) equality. Rather, the judgments express contrasting approaches to racial transforma-tion and positive measures, and grapple with different ways of giving

expression to these in law. Yet, all judgments address — and seek to evaluate — the same underlying issues concerning the purpose of and reasons for the decision, and its impact on Ms Barnard, and all agree that Ms Barnard cannot succeed in her claim. Surprisingly, the application of different legal standards makes no difference to the result. For the main judgment (and Jafta J), the greater emphasis on rationality allowed a measure of deference to the National Commissioner. But even on the majority’s alternative reasonable-ness standard, the claim failed (paras 65–70). Cameron et al JJ and Van der Westhuizen J sought, in different ways, to balance goals of restitution and representivity against considerations of individual impact and service deliv-ery, with reference to particular understandings of the values of dignity and substantive equality (see further below). Whilst Cameron et al JJ relied on a notion of fairness to evaluate competing concerns, Van der Westhuizen J used a value-based framework of proportionality drawn from s 36 of the Consti-tution to evaluate whether the decision was ‘reasonable and justifiable’ and, in particular, ‘whether the impact of the implementation of a section 9(2) measure on other rights is more severe than is necessary to achieve its purpose’ (para 164). In the end, the call made in both judgments is influenced by limited information, and both cite a paucity of evidence and argumenta-tion on both sides as factors in the result (see for example paras 122, 187–9). By contrast, the Supreme Court of Appeal (working within a framework of unfair discrimination) engaged the evidence on record in much finer detail, insisting that the SAPS bear the onus of providing evidence of fairness, and concluding that the scarcity of this evidence and the failure of the National Commissioner properly to explain the non-appointment meant that the discrimination was unfair.

The Supreme Court of Appeal and Constitutional Court judgments illustrate the differences between the close scrutiny of impact in a fairness approach (required by s 9(3) of the Constitution and s 6(1) of the Act), with its attendant onus, on the one hand, and the more deferent approach of rationality, the operation of fairness, without an operative onus, or propor-tionality guided by substantive equality and ‘collective dignity’ on the other. Yet, while the Constitutional Court set a clear precedent that one should not adjudicate positive employment measures as a matter of discrimination and presumptive fairness, it did not reach consensus on the constitutional framework required by s 9 and its influence on the Act. In the end, therefore, the case sets little detailed precedent. The judgment as a whole remains open-ended and contested, its failure to carve out a common constitutional standard creating uncertainty in an area that is in dire need of clear precedent. What precedent does Barnard set?

What does the case tell us about the evaluation of positive measures in the workplace? First, following the decision in Van Heerden, the case is (again) clear precedent for the fact that the conceptual framework for evaluating the state’s employment equity plans and affirmative action measures, as well as decisions taken in terms of them, starts with s 9(2) and not unfair

discrimina-tion in s 9(3). Once more the court reminded us that positive measures are subject to a different constitutional and legal standard than s 9(3) fairness. Although this is not a direct precedent for private employers, it is likely that a similar approach would apply to them. What remains undeveloped is a clear understanding of what the correct conceptual framework is, what legal standard applies, and what the relationship between s 9(2) and the Act is.

Secondly, in evaluating the content of employment equity plans and affirmative action measures by the state, the minimum standard is one of rationality, but it is not the definitive standard. As I argue below, Van Heerden, properly and generously read, clearly sets a higher standard and, as Moseneke ACJ noted in the judgment, ‘these are minimum requirements, it is not necessary to define the standard finally’ (para 39).

Thirdly, the standard for assessing the implementation of employment equity plans and affirmative action measures by the state remains undecided. Whilst one could argue that the main judgment is precedent for the standard of rationality, the judgment’s concern with the absence of legal argument on the issue (see for example paras 54–60, 216) suggests that this, too, is open to further consideration. Moreover, the application of administrative review to an employment decision remains a matter of some controversy (see most recently Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC)). Even if the matter is open to administrative review, it must surely also be open to challenge under the relevant labour law, as an employment decision (see also Cameron et al JJ para 97). Here, it is clear, as three of the four judgments stated, that (whilst it might be brought as a case of unfair discrimination) it cannot be evaluated as an instance of unfair discrimination, or in terms of a notion of ‘fairness’ (Moseneke ACJ paras 51–3; Van der Westhuizen J para 160; Jafta J paras 228–9). As discussed further below, I suggest that the standard should be derived from a reading of s 9 that embraces a multi-faceted notion of equality and enables different values and principles to guide the balancing of purpose and effects in employment equity decisions.

The case does not, therefore, set a final constitutional standard; provide a definitive interpretation of the application of s 9(2) to employment-related positive measures and employment equity; specify the relationship between s 9 and the Act in these matters; or establish clarity on the idea of substantive equality and its multiple underlying principles that would underpin a coherent reading of s 9. Starting with the latter, it is to these points that I now turn.

Contested ideas of (substantive) equality

The judgment reveals how the idea of (substantive) equality in s 9 remains contested, and even undeveloped. Perhaps the most prominent debate in equality jurisprudence has been the place of dignity in the equality right. While there is significant support in courts and academia for dignity to be the ‘lodestar for equality’, and for unfair discrimination to be measured by a Kantian idea of equal moral worth (Laurie Ackermann Human Dignity: Lodestar for Equality in South Africa (2013); S Woolman ‘Dignity’ in S Woolman,

T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa 2 ed (OS, 2006)), this has been disputed in the literature and in some judgments (Cathi Albertyn & Beth Goldblatt ‘Facing the challenge of transformation: Difficulties in the development of an indigenous jurisprudence of equality’ (1998) 14 SAJHR 248; D M Davis ‘Equality: The majesty of Legoland jurisprudence’ (1999) 116 SALJ 398), and some have argued for a more complex and multifaceted understanding of substantive equality in which dignity is but one dimension (Albertyn & Goldblatt op cit; Sandra Fredman ‘Redistribution and recognition: Reconciling inequalities’ (2007) 23 SAJHR 214; Henk Botha ‘Equality, plurality and structural power’ (2009) 25 SAJHR 1; Cathi Albertyn & Sandra Fredman ‘Equality beyond dignity: Multi-dimensional equality and Justice Langa’s judgments’ 2015 Acta Juridica 430).

The dignity-centred approach emerged in the development of unfair discrimination under s 9(3). Here dignity serves two purposes. First, it distinguishes between differential treatment under s 9(1), subject to a test of rationality, and differential treatment under s 9(3) which amounts to discrim-ination and is subject to the test of fairness. Differentiation amounts to discrimination only when it takes place on grounds that have the potential to impair dignity. Secondly, it is only when there is actual impairment of human dignity that this discrimination is found to be unfair. Here the impact of the impugned law or conduct on the dignity of the person complaining of discrimination is determinative (Harksen v Lane NO & others 1998 (1) SA 300 (CC) para 53). So, dignity is pivotal to deciding unfair discrimination and is here predominantly understood to connote inherent human worth and the need to be treated as equally worthy and with equal concern and respect.

In dignity, the focus is on individual worth. However, a more group-based approach to ‘socio-economic disadvantage’, that emanates from one’s mem-bership of a disadvantaged group, is factored into the evaluation of fairness (Harksen para 53). This idea of group-based disadvantage has roots in critical rather than liberal theory, and generally refers to more systemic and institutionalised group-based forms of inequality. However, in s 9(3) juris-prudence, it is generally subsumed by the overall evaluation of impairment of individual dignity as equal moral worth. It is thus often seen as an extension of dignity, rather than a separate understanding of inequality, or an autono-mous dimension of a more complex idea of inequality (Albertyn & Fredman op cit at 436).

The problem with an equality approach based on the impact of an impugned action on individual dignity as self-worth is that it leaves little conceptual space to develop an understanding of positive measures that seek to advance members of historically disadvantaged groups. If the impact on the dignity of the individual complainant is determinative, and this is enhanced by a presumption in favour of unfairness, how do you justify positive measures that seek to redress collective disadvantage but also affect individual members of other, usually more privileged, groups?

Both Cameron et al JJ and Van der Westhuizen J sought to address positive measures by retaining the determining power of dignity. The former did so

within a framework of equality (and s 9), while Van der Westhuizen J stepped outside of this. Cameron et al JJ identified the need to develop a ‘standard to determine whether the implementation of a remedial measure has adequately balanced substantive equality with the dignity of the person negatively affected by the measure’ (para 94, my emphasis). However, they gave little autonomous normative content to substantive or restitutionary equality, and, in the end, identified dignity as the defining value in concluding that the equality goal of affirmative action is ‘equal dignity and respect of all’ — equal dignity and respect both of those being advanced and those being affected by the measure (para 89). Although it is not entirely clear (as they endorse Van der Westhuizen J’s comments on dignity in note 107), Cameron et al JJ seem only to be concerned with individual dignity (equal moral worth) rather than following Van der Westhuizen J in balancing the ‘collective’ dignity of a group versus the individual.

Although there is much to value in Cameron et al JJ’s judgment (especially its instinct to develop a balanced constitutional standard), overall, its conceptual prioritisation of individual dignity and its failure to develop the idea of group disadvantage and substantive equality limits its capacity to reach out to a richer, more coherent and complex understanding of equality and positive measures within a holistic interpretation of s 9.

Van der Westhuizen J worked with dignity outside of equality and balanced one against the other. For him s 9(2) focuses mostly on the nature of the measure to achieve equality and whether or not, in general, it actually achieves equality (paras 145–50). Here he initially poses an idea of substantive equality that recognises group-based disparities and intersectional disadvan-tage, and that seeks to undo the unequal distribution of power, privilege and opportunities in society. Positive measures seek to redistribute opportunities, and must do so in a nuanced, intersectional and situation-sensitive manner, without imposing ‘substantial and undue harm’ (as illustrated by the analysis in paras 150–5). At this stage, the idea of equality is defined not by dignity, but by achieving a more just distribution of power and resources. For Van der Westhuizen J, dignity only enters the equation as a self-standing right which must be weighed against the nature and scope of the equality measure. Thus he sought to balance the value and right of equality (as positive measures) against other rights and values, especially dignity (para 169).

In doing so, Van der Westhuizen J developed a dual understanding of dignity which accepts the more dominant Kantian idea of dignity as intrinsic worth and being treated with equal concern and respect (para 71), but also speaks to a more collective understanding in which the well-being of each person is connected to others and to the well-being of society as a whole (para 175, drawing on Khosa v Minister of Social Development 2004 (6) SA 505 (CC)), and especially those injured by apartheid (paras 170–6). Van der Westhuizen J then sought to balance the dignity of the group versus the dignity of the individual (paras 178–9), as well as the individual dignity impact on Ms Barnard, against ‘the goal of substantive equality’ (paras 180–3). Here he no longer speaks of the distributive aims of equality (to

redress inequality in the distribution of power and privilege), but of its dignity aims: to ensure that people are equally valued and are treated with equal concern and respect (para 180).

Although Van der Westhuizen J argued for ‘an integrated project to achieve equality’ (para 130) and seemed to recognise that equality should be developed as a coherent conceptual idea that enables different principles to emerge and be developed, in practice he did not do this. He was alive to redistribution and redress of disadvantage as an important component of equality under s 9(2), but did not coherently relate this to other dimensions of equality such as equal concern and respect. This is because he ended up locating important components of equality outside of the right, within an expanded notion of dignity, rather than accommodating multiple values and interests within the equality right. By doing so, dignity becomes overloaded, straining under the weight of its more dominant meaning of inherent human worth and a more collective notion of group-based dignity. Equally disconcerting is the fact that the discussion on the right to dignity almost entirely derives from equality jurisprudence! It is clear that Van der Westhui-zen J was seeking an effective way of balancing the various competing considerations and values that are generated by the implementation of affirmative action. However, he seemed to end up with a dignity-centred approach and missed a crucial opportunity to develop equality jurisprudence — and the rich debates in Van Heerden — to strengthen the justificatory mechanisms and resolution of the multiple purposes, principles and values that underpin this complex right.

In the end, both judgments persisted in an approach in which dignity continues to define equality, and a more complex idea of equality remains undeveloped. The focus of equality (whether as fairness or as positive measures) is on equal dignity as a mechanism of securing the equal status and equal recognition of individuals, rather than more systemic, collective and redistributive goals. By this I mean that positive measures seem to be justified largely because of the indignity of apartheid and its failure to accord equal recognition to persons, regardless of race, rather than by the concomitant need to redistribute goods, resources and opportunities, or to overcome systemic group-based oppression and subordination.

Elements of the main judgment seem to adopt an approach in which the achievement of equality is informed by the need to overcome unequal power relations and disadvantage, whilst being alert to the dignity of all (paras 28–32). Substantive equality is achieved, inter alia, by the taking of restitutionary or affirmative measures, but it is not equated with this (paras 33–5). Rather, it seems to be allied to the broader goal of achieving a ‘non-racial, non-sexist and socially inclusive society’ (para 32). There seems to be an understanding that this does not merely imply equal concern and respect (although dignity remains an important measure: para 31), but also requires a collective understanding of group-based equality and the need for systemic change that dislodges existing social and economic hierarchies and power relations (see for example paras 29, 33, 35). However, this idea

remains implicit and unarticulated as the judgment, disappointingly, does little conceptual work in developing equality and defers to a rationality standard in testing the claim.

In summary, therefore, all judgments lack a multifaceted understanding of the purposes and principles of substantive equality that would have enabled a clear and consistent development of s 9 equality jurisprudence. Such an approach could have drawn on Van Heerden to provide greater clarity and guidance on how to balance and justify the apparently competing claims of discrimination and affirmative action, both in s 9 and in the Act.

Substantive equality as a complex, coherent and multifaceted idea

In contrast to a dignity-centred approach, I argue for an understanding of s 9, as a whole, that captures a complex, multi-dimensional right to substantive equality, informed by a variety of constitutional principles and values. At minimum, they include the democratic values of the achievement of equality, dignity and freedom.

There is little space in this note to elucidate this idea or to give detailed meaning to these values; however, the following content seems to flow most logically from the Constitution and its jurisprudence. The value of dignity would generally concern recognition or social equality issues and signify a concern with the equal social worth of individuals. The value of achieving equality can be read to seek redress of structural disadvantage towards a more just and egalitarian social and economic order (as a complex idea of intersecting social and economic, distributive and relational inequalities: Jonathan Wolff & Avner de-Shalit Disadvantage (2007)). The principle of affirming difference and diversity captured within s 9 is simultaneously an incidence of individual self-worth and of removing the hierarchies of privilege and power that impede group-based recognition — reflecting the values of equality and dignity. The influence of the values of freedom and participation on s 9 speaks to the ability of individuals to make choices and secure their full place within society. This is closely linked to the value of equality in so far as it requires undoing hierarchies of power and privilege and establishing the social and economic conditions necessary for individual well-being, positive relationships and meaningful choice. How each of these is understood in a particular claim, as well as the relationship between them, might differ (as the experience and conditions of inequality differ), but each must be articulated contextually within an overall goal of promoting individual well-being, enabling the conditions of greater equality, and achieving a more just society. (See further on this multi-dimensional approach Fredman op cit; Botha op cit; Catherine Albertyn ‘ ‘‘The stubborn persistence of patriarchy’’: Gender equality and cultural diversity in South Africa’ (2009) 2 Constitutional Court Review 165 at 184–94; Albertyn & Fredman op cit.)

Overall, these values speak to a society which, inter alia, seeks to (i) accord equal status and recognition to all and overcome the failure to treat individuals with equal concern and respect; (ii) address the systemic and

entrenched conditions of group-based disadvantage; (iii) affirm difference and diversity; and (iv) secure the conditions necessary for participation and choice. Such an approach evinces a concern with the individual, but within a deeper understanding that individual circumstances and choices are struc-tured by intersectional and overlapping group-based systems of inequality.

Although s 9 is not the only right that aspires to create the society described above, it plays a significant role in addressing unfair discrimination (the differences to which disadvantage attaches) and positive measures that proactively remove or address the social and economic disadvantage that attaches to race or gender (or other) difference. The multi-dimensional approach to s 9 recognises that multiple, competing and complementary principles and values inform the right as a whole, and might be differently balanced in different sections of the right (such as s 9(2) versus s 9(3)) and in different instances of inequality. A single value, such as dignity, is no longer determinative. Rather, issues of individual dignity, for example, can be weighed against group-based disadvantage within an overall understanding of the kind of society that we are seeking to achieve. Unlike Van der Westhuizen J’s approach, this is done within the ambit of s 9 and its animating values. Courts are therefore expected to find the appropriate balance between dignity and disadvantage, between the individual (and her dignity) and the (structural disadvantage of the) group, and between immediate harm and long-term transformative goals. In particular, a greater emphasis needs to be placed on developing ideas of remedying disadvantage and enhancing participation in interpreting the right. The next section builds on Van Heerden and Barnard to consider how this might be done in s 9 in general, and s 9(2) in particular, as well as how this might inform the interpretation and application of the Act.

Substantive equality, the Act and the interpretation of s 9(2) of the Constitution Two of the judgments (main and Van der Westhuizen J) accepted that employment equity by the state must be evaluated through the prism of s 9(2), although only Van der Westhuizen J provided substantive content to, and justification for, this. Neither of these judgments applied the Act directly. The two remaining judgments identified the role that the Act must play in determining the legality of decisions concerning employment-based affirma-tive action. Cameron et al JJ gave content to their idea of fairness with reference to the provisions of ss 2, 6, 15, 20 of the Act, while Jafta J would limit his to the purpose of the Act set out in s 2. However, neither Cameron et al JJ, nor Jafta J, developed s 9 of the Constitution as a conceptual frame for this approach.

In the next part below, I posit an approach that interprets and applies the Act to decisions concerning affirmative action with due regard to a conceptual framework derived from s 9 of the Constitution. This recognises the multiple values underlying the right and develops the precedent set by Van Heerden to provide a mode of evaluating purpose and effects, with due

regard to these values, and the constitutional importance of advancing disadvantaged groups.

The precedent set by Van Heerden

The constitutional standard for positive measures was set in Van Heerden, a case concerning the application of a positive measure (in the form of beneficial pension contributions) to first-time members of parliament after 1994 (a group that was largely defined by race). At that stage, precedent had favoured the s 9(3) route, in which positive measures were tested against the standard of ‘fairness’. This cohered with a broad understanding of those acting on behalf of ‘victims’ of affirmative action that it was a form of reverse discrimination requiring a high standard of justification. The Constitutional Court disagreed. Citing the need for ‘a credible and abiding process of reparation for past exclusion, dispossession, and indignity within the disci-pline of our constitutional framework’ (para 25) and ‘a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege’, the majority judgment of Moseneke DCJ identified ‘a substantive conception of equality inclusive of measures to redress existing inequality’ (para 31). Within this, ‘[r]emedial measures are not a derogation from, but a substantive and composite part of, the equality protection envisaged by the provisions of section 9’ and ‘differentiation aimed at protecting or advancing persons disadvantaged by unfair discrimination is warranted provided the measures are shown to conform to the internal test set by section 9(2)’ (para 32). In two minority judgments, Mokgoro J generally agreed with the approach (with some reservations: see below) and developed the understanding of the place of s 9(2) in the right as a whole, and Sachs J agreed with the outcome and further elaborated the overall approach. I draw on the main and the minority judgments below, in so far as I find them to be clear and logical developments of each other and of the best overall approach to s 9(2). Overall, I am seeking the best interpretation of the case and of s 9(2) within a multifaceted and coherent understanding of the right.

What is important for the purposes of this note is the content of the s 9(2) test; the manner in which the court seeks to balance competing factors; the level of scrutiny it applies to this; and the values it uses to justify its conclusions.

Positive measures certainly attract a lower standard of scrutiny than unfair discrimination and involve a degree of deference in which the ‘judiciary . . . [should not] second guess the legislature and the executive concerning the appropriate measures to overcome the effect of unfair discrimination’ (para 33, Sachs J para 152). However, it is not correct that Van Heerden established a rationality standard for s 9(2) (as argued by, for example, J L Pretorius ‘Accountability, contextualisation and the standard of judicial review of affirmative action: Solidarity obo Barnard v South African Police Services’ (2013) 130 SALJ 31). This is an impoverished interpretation of the judgment, which sets a standard higher than rationality, but perhaps lower than (and different

from) the fairness threshold of s 9(3). As I argue below, the evaluation can be read to entail a justificatory mechanism that balances purpose and effects, with due regard to multiple values (and especially remedying disadvantage) within the overall vision of the Constitution.

The court isolated three overlapping criteria in s 9(2) to test positive measures. First, the measure should target a category of beneficiaries disadvantaged by unfair discrimination. There is disagreement in Van Heerden as to how this should be constituted, with the majority accepting that the ‘overwhelming’ number are of the disadvantaged group, and the minority judgments wanting the group to be comprised only of disadvantaged persons (see for example Mokgoro J para 89). Secondly, the measure must be ‘designed to protect or advance such persons or categories of persons’ and must be ‘reasonably capable of attaining the desired outcome’. No causal connection is required to show that it actually would achieve such an outcome (paras 41–2). ‘The fact that the same remedial purpose could have been achieved in other and possibly better ways would not be enough to invalidate it’ (Sachs J para 153). Thirdly, the measure must promote ‘the achievement of equality’ (para 37) and ensure that it does not impose disproportionate burdens or ‘constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened’ (para 44, Sachs J para 152).

These criteria demonstrate a concern with the purpose of the measure as well as its impact, and the underlying values that should guide the appropriate result. Although the case is more directly relevant to the evaluation of a positive measure than its implementation, a full reading of Van Heerden can provide important indicators of the standards and methods of evaluating both content and implementation.

First, Van Heerden suggests that the evaluation entails a proportional assessment of purpose and impact, including the various interests affected by the measure or decision. This is apparent in the manner in which the court addressed the s 9(2) enquiry, which, across all three factors being evaluated, involved a fairly detailed scrutiny of the issues, including a consideration of the measure (or decision) as a whole; its historical context; the duration, nature and purpose of the measure (paras 45–52); the position of the person complaining of unfair discrimination and the impact of the measure on him or her and his or her class (paras 53–6); as well as the position of the group being promoted (para 48). The nature of this proportional assessment is also addressed in the concurring judgment of Sachs J (see for example paras 136, 140).

Secondly, this is a contextual enquiry that looks at the issue holistically and should comprehend the structures of advantage and disadvantage that underpin the measure or decision (para 44; Sachs J paras 139–42).

Thirdly, it deals with, and draws on, the values underpinning the right (paras 22; 44, Sachs J paras 140–2). Here the principle of remedying disadvantage is particularly strong. As Sachs J notes:

‘The overall effect of section 9(2) . . . is to anchor the equality provision as a whole around the need to dismantle the structures of disadvantage left behind by centuries of legalised racial domination, and millennia of legally and socially structured patriarchal subordination’ (para 141).

Dignity, in the shape of equal concern and respect for all, is also important: it entails an appreciation of individual dignity along with the dignity of those affected by apartheid and patriarchy, and thus for all to ‘benefit from the stability, social harmony and restoration of national dignity that the achieve-ment of equality brings’ (Sachs J para 145).

Most importantly, in finding the balance between the competing interests and principles that might emerge, s 9(2) allows us to place a thumb on the scale of disadvantage and the remedial purpose of the measure: ‘Given our historical circumstances and the massive inequalities that plague our society, the balance when determining whether a measure promotes equality is fair will be heavily weighted in favour of opening up opportunities for the disadvantaged’ (Sachs J para 152). Justice Mokgoro describes s 9(2) as forward-looking with a particular concern with the collective benefit of the group being advanced, while s 9(3) is backward looking and emphasises the impact on the group or individual being discriminated against (para 80). Section 9(2) inevitably gives less weight to the position of the complainant, but it does consider this and does not merely defer to the need to promote disadvantaged groups. Overall, the approach to s 9(2) and to finding the balance in positive measures is quite different from that of evaluating unfair discrimination in s 9(3). In s 9(3), individual impact measured by individual dignity has been determinative; in s 9(2), the goal of remedying group-based disadvantage is given particular weight.

Using Van Heerden and the Act in evaluating the implementation of employment equity by the state

In the context of vindicating rights, the Constitutional Court has insisted that matters be brought under relevant legislation rather than relying on a constitutional right; for example, in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 rather than s 9(3) of the Constitution, and the Promotion of Administrative Justice Act 3 of 2000 rather than s 33 of the Constitution (MEC Education Kwazulu-Natal v Pillay 2008 (1) SA 474 (CC) para 40). Thus, if the Act is the starting point for evaluating positive measures in the workplace, then it must be applied. Section 6(2) of the Act provides that it is not unfair discrimination to take affirmative action measures consistent with the purpose of the Act, but provides no direct guidance on how to evaluate these. Hence many courts have (incorrectly) adjudicated affirmative action measures in terms of s 6(1) and unfair discrimination, with its relevant onus. Indeed, the lack of clarity within the Act on the relationship between s 6(1) and s 6(2)(a), and how to determine when affirmative action measures are ‘consistent with the pur-poses of the Act’, has led to confusion and differing approaches in the courts.

The correct approach, it is suggested, is that the Act should be interpreted and applied with due regard to the Constitution (as is required by s 3 of the

Act), and in particular s 9(2) and the best interpretation of s 9 set by the court in Van Heerden. As discussed above, the conceptual framework of s 9(2) developed from Van Heerden requires all factors to be assessed proportionally and contextually, but in the balance between remedying disadvantage and addressing dignity, greater weight should be given to redress of disadvantage. This section sketches the outlines of this approach in interpreting and applying the Act to decisions about public sector employment (rather than the content of employment equity plans).

First, the enquiry is a contextual one that seeks to evaluate both purpose and effects, taking account of evidence and reasons. The absence of evidence and reasons can weigh against parties in balancing purpose and effects. The s 9(2) approach is not a ‘hands-off’ approach although, in the balance, it is more deferent to purpose over impact, and probably to values of disadvan-tage over individual dignity. At the risk of repetition, there is no onus that operates in favour of the complainant. The provision of reasons, values and justification — by the state and in the judgment — not only enables a proper adjudication of the claim, but also addresses an anxiety about overreach and abuse of power, accords equal concern and respect to all (City Council of Pretoria v Walker 1998 (2) SA 363 (CC) para 81), and recognises all as constitutional subjects, even if subjective individual dignity is impaired.

Secondly, the task of balancing purpose and impact, as well as different values and principles, is assisted by the provisions of the Act. On the side of the purpose of remedying disadvantage are the purposes of the Act set out in the preamble and s 2, as well as the more concrete provisions of s 15. Thus the Act seeks to promote equality and overcome disadvantage, to redress the past, to provide equal employment opportunities, and to ensure diversity and equitable representation (preamble, s 2). To do this, it allows affirmative action measures within the scope of the Act (ss 15 and 20). On the side of dignity and impact, these measures must be developed and implemented in a way that furthers the ‘equal dignity and respect of all’ (s 15(2)(b)) and must not establish ‘an absolute barrier to the continued employment or advance-ment’ of persons who are not from designated groups (s 15(4)). In addition, the implementation may include preferential treatment and numerical goals, but not fixed quotas. Part of the enquiry, therefore, is to establish whether flexible targets are too rigidly and formulaically applied (s 15(3)). Both the main and Cameron judgments speak to many of these issues, although the former does not apply them fully and the latter does so in terms of a fairness norm.

The Act also speaks to issues of an effective and efficient workforce (preamble) and the need for affirmative action candidates to be suitably qualified (s 20(3) and (4)). Clearly this, too, goes into the mix of evaluating an affirmative action decision, although it was not directly an issue in the case. Service delivery, however, was an issue, and this can be linked to the Act’s concern with efficiency and skills (see also the main judgment para 80). As it is a public sector appointment, the Act can be read and applied in the context of constitutional obligations to provide an effective and responsive public service (s 196 of the Constitution).

Although too briefly sketched, the general approach suggested in this note is that a full reading of Van Heerden can set a broad conceptual framework for the detailed application of the Act. How does this differ from what the judges said in Barnard, especially as both the Cameron and Van der Westhuizen judgments engage in forms of proportionality and balancing values, purpose and effects?

The instinct of Cameron et al JJ to work with the Act, to balance competing factors, and to avoid a presumptive onus of fairness (that prioritises individual impact) is correct. However, in their reliance on fairness as the normative standard, the judges limited themselves to a dignity-centred approach and did not sufficiently distinguish between constitutional fairness under s 9(3), the fair labour practice jurisprudence, and the fairness of positive measures. Given that the adjudication of fairness in equality jurisprudence has a particular meaning that is tied to impact and individual dignity, more work would need to be done to develop fairness as a mechanism for adjudicating positive measures. Justice Sachs’s minority judgment in Van Heerden suggests that this is possible (especially paras 136–40), but it requires a much more nuanced and multi-dimensional approach to s 9 and to equality as a whole. Thus Van der Westhuizen J and Jafta J were correct to worry about the conceptual coherence of using fairness under s 9(2) and in relation to affirmative action. Van der Westhuizen J was, of course, correct to seek to balance the competing principles of dignity and equality, but the manner of doing so (overloading the right to dignity and weighing it against an aspect of the right to equality) is cumbersome and unnecessary. Equality in s 9 is quite capable of incorporating these balancing mechanisms, and the jurisprudence provides some guidance to that effect. Of course, to do so, one would have to move away from the dignity-centred approach, which in itself acts as a barrier. Van der Westhuizen J and the main judgment were wrong to limit their enquiry to s 9(2) and the Constitution. Surely, the jurisprudence on subsidiarity tells us that the Act comes first and should be applied. Finally, Jafta J was correct to read s 9(2) and the Act together, but was wrong to limit the role of the Act to the purpose set out in s 2. This unduly narrowed the scope of the enquiry on this very important issue. Thus, no judgment fully captures the importance of defining the overarching normative and methodological framework set by s 9(2) and its application to the Act.

CONCLUSION

This note has only sketched the broad brush-strokes of a substantive interpretation and application of the Act to employment equity decisions within the overall guidance of the Constitution, especially s 9(2). Funda-mentally, the argument is for the interpretation of the Act within the framework of s 9 that the Constitutional Court began to develop in Van Heerden. It is suggested that the court missed an important opportunity to develop this approach within a complex understanding of the right to